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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Friday, August 13, 2010

Dispute over racial consent decree in Syracuse goes to trial

This is the kind of case that could dominate a Circuit judge's Supreme Court nomination, much like Ricci v. DeStefano became the focus when Sonia Sotomayor was named to the Supreme Court in 2009. Since Elena Kagan had nothing to do with this case, it will probably labor in obscurity.

The case is Vivenzio v. City of Syracuse, decided on July 1. This case strikes at the heart of our culture wars: racial discrimination in employment and consent decrees that require municipal officials to take race into account in hiring. The plaintiffs are firefighters who were denied employment by City of Syracuse because the City had to comply with a 1980 consent decree that ensures that the number of black firefighters approximated the percentage of blacks in the City's labor pool. The district court denied the plaintiffs summary judgment and instead dismissed the case. The Court of Appeals (Kearse, Livingston and Vitaliano [D.J.]) reverse and remand the case for trial.

In 1980, Syracuse entered into the consent decree because blacks comprised 10 percent of the labor force but only 4 out of the City's 478 firefighters were black. Since that time, the City's hiring practices have improved, and by April 2004, 16.58 percent of the City firefighters were black. So when the white plaintiffs in this case unsuccessfully sought these positions in 2004, they were denied those positions even thought "their civil service test scores were higher than those of at least five candidates hired from the 'black list.'"

Plaintiffs are entitled to a trial on their claims brought under Title VII and Section 1981, which prohibits racial discrimination in employment. The Court of Appeals rules that it is by no means certain that the City's reliance on the 1980 consent decree is a legitimate reason to deny the plaintiffs employment. For one thing, the City did not adduce any evidence of the racial makeup of the City's labor pool, a necessary factor in attempting to comply with the consent decree. Second, the district court should not have relied on the percentage of blacks in the City's overall population (about 25 percent) in determining that the goals of the consent decree had not been met; that percentage may or may not match the percentage of blacks in the City's labor pool (about 16 percentage).

If the goals of the consent decree are met, then the City is going to have a difficult time favoring blacks over whites in hiring firefighters. The district court wrote that the plaintiffs have not challenged the constitutionality of the consent decree, but Judges Livingston and Vitaliano write in concurrence that the plaintiffs have in fact lodged such a challenge. These judges also think it would not be a bad idea for the district court to take up that challenge on remand in light of judicial skepticism over racial hiring goals since 1980, when the City entered into the consent decree.